(dissenting).
The petitioner-appellant’s motion for stay of the criminal proceeding in the state court of New York assumes, correctly, that the New York Court will follow the New York rules of evidence, and will admit evidence obtained by tapping the petitioner’s telephone.
The New York rule of evidence is, that the court, when engaged in trying a criminal case, will not take notice of the manner in which witnesses have possessed themselves of papers and other articles of personal property which are material and properly offered in evidence.
The foregoing quotation is from the opinion in People v. Adams, 176 N.Y. 351, 358, 68 N.E. 636, 638, 63 L.R.A. 406. It was quoted with approval in People v. Richter’s Jewelers, 291 N.Y. 161, 51 N.E. 2d 690, 150 A.L.R. 560.
This rule of evidence is said by the petitioner to have been derived from the common law; to have been introduced into American jurisprudence toward the middle of the nineteenth century; and to have been adopted by a majority of American state jurisdictions.
The petitioner’s estimate of the precedents is verified by Wigmore on Evidence (3rd Ed.), vol. 8, §§ 2183-2184b and McCormick on Evidence, §§ 137-142.
That the rule that wiretap evidence is admissible is only a rule of evidence is confirmed by the highest authority, speaking in 1957, in Benanti v. United States, 355 U.S. 96, 101, 78 S.Ct. 155, 2 L.Ed.2d 126. There, Chief Justice Warren for a unanimous Court, distinguished Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, by saying:
“The rationale of that case is that despite the plain prohibition of Section 605 (the Federal Wiretapping Statute), due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear intention to that effect.”
What this Court is asked to do in the instant case is to hold that it is a violation of due process of law for a State to apply a rule of evidence which is the *509rule in a majority of the States of the United States. Can it be that the essentials of “ordered liberty” of decent and rational process of law have been hidden from so many courts and judges and juristic authorities during so many years, and have now at last been revealed, and only to this Court?
The instant petition urges the Federal District Courts to go into the business of supervising the proceedings in State Courts in their day-to-day activities; to take a seat on the bench beside the State Court Judge and direct him how to rule on the admission of evidence offered at the trial. It would be hard to imagine a more intolerable practice, even if it were indulged in by judges of higher rank, but in the same judicial hierarchy. Here again we have recent admonition from the Supreme Court of the United States. In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, Mr. Justice Frankfurter wrote for the Court in a case practically on all fours with the instant one. There the petitioners sought, in a Federal Court, an injunction against the use, in a State criminal proceeding, of evidence obtained by State police by an illegal search. The Supreme Court said, 342 U.S. at page 120, 72 S.Ct. at page 120,
“Here the considerations governing that discretion [the discretion of a Court of Equity in determining whether to issue an injunction] touch perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States.”
At pages 123-124 of 342 U.S., at page 121 of 72 S.Ct. the Supreme Court said:
“The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range— would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” I would deny the requested stay.